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Impact Debated Five Years After Critical Areas Law OK’d

BERLIN – It’s been five years since Worcester County adopted its controversial Critical Areas law and the legislation has become the cornerstone of how the county has developed in the years since and will develop in the future, but the jury is still out on whether the planning doctrine has or will achieve the desired results.

Striking a balance between sensible growth and development and protecting and preserving the fragile environment had been a big issue in Worcester County for several years, and remains one to this day, but the issue came to a head in 2002. Under increased pressure from the state to adopt stringent coastline protection legislation, county officials drafted a coastal bays Critical Areas bill and were on the threshold of passing it into law when the governor interceded.

In the spring of 2002, the General Assembly passed former Maryland Governor Parris Glendening’s Atlantic Coastal Bays Protection Act, which basically extended the protections spelled out in the decades-old Chesapeake Bay Critical Areas law to the coastal bays. The governor’s bill roughly paralleled the Chesapeake Bay bill in that it applied the overall management strategy to the first 1,000 feet from the water’s edge including strong protections for a 100-foot buffer from the high tide line.

Worcester was given the opportunity to develop its own coastal bays protection bill applying local land-use practices, subject to the approval of the state’s Critical Areas Commission (CAC), but the county’s bill had to be at least as stringent as Glendening’s bill. The long process to draft and adopt the local bill included several often-heated public hearings as developers and environmentalists wrestled over conservation and property owner’s rights.

“There was a lot of apprehension about this on both sides,” said County Commissioner Virgil Shockley, who was on the board when the Critical Areas law was adopted. “We were told in no uncertain terms we had to do it or they [the state] were going to do it for us. We didn’t really have any choice, although we knew it would ruffle some feathers.”

Essentially, the county’s Critical Areas bill created a 1,000-foot belt around the coastline in Worcester where conservation practices would be applied with a stringent 100-foot natural buffer between any new construction and the high tide line. The environmental community praised the legislation for its benefits in terms of water quality and habitat protection, while its detractors criticized the bill for its apparent lack of regard for property owner’s rights.

“Some still say it is way too restrictive while others argue it doesn’t go far enough,” said Shockley. “Did we make it better? I think so in the long run. I don’t think its any more stringent than the state law.”

The impact of the bill has been far-reaching in Worcester with over 22,000 acres included in the 1,000-foot protection zone and over 4,000 acres included in the 100-foot buffer zone. At the time of its adoption, many criticized the bill because they believed it amounted to a “taking” of their property because hundreds of lots, because of their odd shape or their proximity to the water, could become unbuildable under the letter of the new law.

Five years later, county officials continue to apply the intent of the bill in its long-range planning efforts while the building community struggles to adhere to its principles while maximizing the potential of waterfront lots. The passion surrounding the issue five years ago has dissipated, or is at least simmering below the surface, but it remains somewhat controversial to this day.

“You have to remember, this is largely about property rights,” said Shockley. “This is still the Eastern Shore, and for those of us born and raised here, saying where you can build and what you can do with your land goes against our grain.”

Regardless, the Critical Areas legislation adopted by the county five years ago continues to be a cornerstone for future planning in Worcester. The County Commissioners last year adopted a new Comprehensive Plan for future growth in Worcester and are slowly going through the process of preparing a comprehensive rezoning of much of the county.

The basic tenets of the Critical Areas law adopted five years ago have been an essential element throughout the process, according to Worcester County Director of Comprehensive Planning Sandy Coyman.

“From a long-range planning perspective, the Critical Areas law has been used as one of the major criteria when assessing whether or not an area is suitable for growth,” he said this week. “The concept has been to avoid the Critical Areas and shift development inland. It has definitely played a major role.”

Worcester County Planning Commission Chairwoman Carolyn Cummins has been on the front lines of the adoption of the Critical Areas law and the subsequent revision of the county’s comprehensive plan. Cummins said this week five years might not be a long enough time period to assess whether the Critical Areas law has been a success or failure.

“My first impression is it has simply not been enough time,” she said. “It was a fundamental premise of the comp plan revision, and its spirit has been adhered to as we review and approve plans, but its impact on water quality and habitat might have to be measured in a larger context.”

The timetable for measuring the effectiveness of the law is one part of the issue both sides can agree on. For example, local attorney Mark Cropper, who was on the front lines of the debate five years ago and lobbied against the bill in Annapolis, agreed this week five years is probably too short a time to grade the law’s effectiveness.

“Probably, only time will tell,” he said. “It certainly has accomplished the goal of preventing development from encroaching closer to the water, but whether that equates to improving the quality of the water, only time will tell. I don’t know we’ll ever know to what extent the benefit will be.”

In terms of whether the law has created a hardship for property owners, Cropper said is has in many cases.

“As to whether it has created hardship for property owners and developers, it can only be assessed on a case-by-case basis,” he said. “In my experience, in some cases it has created no apparent hardship, while in others, based on the size or shape of a lot, it has created extreme hardship.”

Maryland Coastal Bays Program Public Outreach Coordinator Dave Wilson said he believes the Critical Areas law is achieving results already, but agreed its overall impact might have to be measured on a larger scale.

“We feel, after all the hoopla and the ‘sky is falling’ sentiment, the law is doing what it is supposed to do,” he said. “Yes, some of the coastal bays are still impaired, but they are improving and this law has had a lot to do with that. Overall, the eastern one-third of the county is abiding by the law and it is paying dividends.”

While it appears the Critical Areas law is achieving the desired results in the waterfront areas of the county, time will tell if the ambitious plan is working in terms of nutrient loading and pollution coming from the inland two-thirds of Worcester, according to Coyman.

“The big factor to consider here is the nutrients and pollution in the ground water in inland areas,” he said. “There is a built-in residual of pollution in the ground water in inland areas that might take 30 years to reach the coastal bays. For that reason, it might take decades before we realize the true benefits of the Critical Areas law.”